Environmental law (Northwestern School of Law)最新文献

{"title":"Priority Matters: Lessons from Tort Law for Proving Causation of Wildlife Harm and Allocating ESA Responsibility Between Water Users","authors":"James R. Rasband","doi":"10.2139/ssrn.389720","DOIUrl":"https://doi.org/10.2139/ssrn.389720","url":null,"abstract":"The backbone of western water law is the basic notion of first-in-time-is-first-in-right. Beginning water law students have long been taught that under the law of prior appropriation, if there is not enough water in a stream to satisfy the reasonable uses of all diverters, junior users are obligated to close their headgates and pray for rain. Such occurrences have been rare because historically western states have built so much water storage (read dams) that short-term drought can be covered for even the most junior diverter. Although the assertion of priority is rare, it would be hard to imagine a more fixed principle in water law. It is increasingly evident, however, that this fixed principle of priority is being ignored when the Endangered Species Act (ESA) is used to curtail diversions to assure sufficient instream flow for threatened and endangered species. Rather than impose the regulatory burden on junior appropriators, the federal wildlife agencies charged with enforcing the ESA—the Fish and Wildlife Service (FWS) within the Department of Interior and the recently renamed NOAA Fisheries, formerly and still more commonly called the National Marine Fisheries Service (NMFS), within the Department of Commerce—have exercised discretion to pursue whichever appropriator they prefer. In several agency enforcement efforts, senior water rights holders have borne the brunt of obligations to provide more water. Although such efforts have been relatively infrequent, in part because the ESA has not been vigorously applied to harms caused by instream flow","PeriodicalId":81171,"journal":{"name":"Environmental law (Northwestern School of Law)","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68664186","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Scientific Innovation and Environmental Protection: Some Ethical Considerations","authors":"Carol M. Rose","doi":"10.2139/SSRN.340542","DOIUrl":"https://doi.org/10.2139/SSRN.340542","url":null,"abstract":"This article explores a fundamental problem that scientific research poses for environmental ethics. Scientific research has brought great gains to our knowledge of the environment, but the motivations for scientific research tend systematically to run counter to environmental protection. While research scientists may have many different individual motivations for their work, economic actors are most likely to pay attention to and fund scientific research agendas that can lead to economically valuable information, which means that the research results must be capable of belonging to some entity. However, environmental harms and benefits are generally not experienced as belonging to anyone, because their diffuseness makes them difficult to reduce to property. The result is a pattern in which scientific research veers first towards products that can be \"propertized,\" and only later, if at all, towards the environmental consequences of such new products. Environmental ethics need to address this research gap. The article explores some ways in which publicly funded research and regulatory programs might do so. It concludes that, in spite of ethical doubts that have been raised about market-based environmental regulation, such programs deserve closer attention; they may have ethical value that can offset ethical qualms, because they can motivate economic actors to channel research toward the environment, and thus help to narrow the research gap as between \"propertized\" goods and environmental goods.","PeriodicalId":81171,"journal":{"name":"Environmental law (Northwestern School of Law)","volume":"32 1","pages":"755"},"PeriodicalIF":0.0,"publicationDate":"2002-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.340542","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68591002","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Saving Snake River Water and Salmon Simultaneously: The Biological, Economic, and Legal Case For Breaching The Lower Snake River Dams, Lowering John Day Reservoir, and Restoring Natural River Flows","authors":"M. Blumm","doi":"10.2139/SSRN.193661","DOIUrl":"https://doi.org/10.2139/SSRN.193661","url":null,"abstract":"Snake River salmon, historically constituting the most abundant salmon runs in the Columbia River Basin, today teeter on the brink of extinction. Their decline has prompted federal, state, and tribal restoration plans, some of which advocate breaching the four federal dams on the lower Snake River and eliminating or lowering John Day reseroir on the Columbia River. These measures would restore natural flows in portions of the Columbia and Snake Rivers and significantly decrease salmon mortality, but opponents claim they are sceintifically unjustified and too costly. In this Article, the authors comprehensively review the major scientific and economic studies on breaching the lower Snake River dams and conclude that this option is not only scientifically sound, but also economically affordable. In fact, they assert that dam breaching may prove less costly, both economically and socially, for upriver interests than attempting to improve the current restoration program. Designed to have as little effect as possible on cheap hydropower generation, navigation, and irrigation, the current program relies on a trucking and barging program to transport salmon downstream. This program has proved to be a twenty-year failure. The Article also explores numerous legal mandates to restore Snake River salmon that make continuation of the status quo legally unacceptable.","PeriodicalId":81171,"journal":{"name":"Environmental law (Northwestern School of Law)","volume":"28 1","pages":"997"},"PeriodicalIF":0.0,"publicationDate":"2001-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67802708","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Rise of Urban Archipelagoes in the American West: A New Reservation Policy?","authors":"James R. Rasband","doi":"10.2139/SSRN.240772","DOIUrl":"https://doi.org/10.2139/SSRN.240772","url":null,"abstract":"During the Nineteenth and early Twentieth centuries, the public lands were managed primarily on behalf of those interested in using and extracting the timber, minerals, and grass. Native Americans were removed from the lands in favor of farmers, grazers, loggers, and miners. During the last half-century, however, the American West has been undergoing a dramatic transformation with significant consequences for our approach to the public lands. Two related trends have emerged. First, the West has experienced a population boom and has seen the development of what demographers call \"urban archipelagoes,\" places like Colorado's Front Range which have densely populated urban, suburban, and exurban areas surrounded by large rural areas with sparse and declining population. Second, this population movement has been accompanied by an increasing preference that the public lands be devoted to preservation and recreation rather than extraction. The article discusses how the law should respond to this new preference. It does so by examining some of the significant similarities between federal Indian policy in the Nineteenth Century and public lands policy today. The article suggests that although those of us who have flocked to the West's urban archipelagoes have a different view of how the West's natural resources are best used, many of us seem to share with our Nineteenth Century counterparts the view that those who were here before we arrived are an obstacle to achieving our desired uses of the West's resources. The article examines the profound Nineteenth Century echoes in the new goal of weaning rural westerners of their dependence on the public lands and training them in the arts of urban service economies so that the lands will be available for recreation and aesthetic enjoyment. The article uses the metaphor to suggest that we more thoughtfully consider the impact of public lands policy on the rural communities of the West and that we exhibit less certainty and more skepticism about the superiority of our public lands aspirations. Skepticism, which implies a willingness to question and explore the viewpoints of others, suggests that participation of rural communities in public lands decision-making is a critical component of a principled public lands policy. The article concludes by discussing several ways of enhancing rural participation and offers a brief critique of the Clinton Administration's adherence to the participation norm.","PeriodicalId":81171,"journal":{"name":"Environmental law (Northwestern School of Law)","volume":"48 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2001-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68186194","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Information as Environmental Regulation: TRI and Performance Benchmarking, Precursor to a New Paradigm?","authors":"B. Karkkainen","doi":"10.4324/9781315194288-6","DOIUrl":"https://doi.org/10.4324/9781315194288-6","url":null,"abstract":"The Toxics Release Inventory (TRI) marks a watershed, pioneering the use of performance monitoring and benchmarking as regulatory tools. By creating an objective performance metric, TRI compels firms to self-monitor even as it enables them to benchmark performance among operating units and against their competitors. Simultaneously, it increases external transparency and accountability, enabling interested parties-citizens, regulators, and investors-to monitor pollution performance, make benchmarking comparisons, and discipline poor performers. This Article explores the strengths and limitations of this innovative approach, and its implications for future environmental regulation.","PeriodicalId":81171,"journal":{"name":"Environmental law (Northwestern School of Law)","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2000-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70636006","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tragically Difficult: The Obstacles to Governing the Commons","authors":"B. Thompson","doi":"10.2139/SSRN.236031","DOIUrl":"https://doi.org/10.2139/SSRN.236031","url":null,"abstract":"Garrett Hardin's famous article, \"The Tragedy of the Commons,\" recognized the overuse that occurs when resources are freely available to everyone in common. This essay examines why it has often proven so difficult to solve commons dilemmas through regulation, privatization, and other measures. Using fishing, groundwater extraction, and global warming as examples, the essay suggests that stakeholders find it particularly difficult to agree on solutions, even where a universally imposed solution would be in most stakeholders' interests, because people are reticent to accept current losses to avoid future risks, the dilemmas are characterized by significant scientific and social uncertainty, and users heavily discount the probability and cost of future losses. Turning to potential ways around these obstacles, the essay discusses why commons dilemmas cannot be solved purely through legal coercion or changes in environmental attitude. The essay suggests a variety of ways to improve the chances of convincing resource users that there is a problem that must be addressed and then getting them to agree both on a solution and how to allocate the burden of that solution.","PeriodicalId":81171,"journal":{"name":"Environmental law (Northwestern School of Law)","volume":"30 1","pages":"241"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68140160","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}